>> michael: coming up tonight, it's set up like this for a reason and a good one at that. still it never ceases to amaze when the fate of 10s of millions of americans comes down to what nine of them happen to be thinking. i'm michael shure. this is "the war room." [♪ theme music ♪] >> michael: this is an historic day as the highest court in the land hears the first of two cases dealing with gay marriage. hundreds of people supporters and protesters alike gathered to

make their voices heard. >> it's two women or two men, i ain't got nothing wrong with their lifestyle, per se but you can't get married. >> everything changes in this country, all the time. so i think it's exactly what this country is supposed to be about. >> michael: the issue has picked up speed since 2008 when california passed prop 8 a ban on gay marriage, the next year two couples sued the state. four years later the case has landed in the supreme court. the justices will decide whether california voters had the constitutional right to bangay marriage. lawyers for both sides made their case today. the lawyer representing gay

couples said that prop 8 is unconstitutional because it quote walls off gays and lesbians from marriage. but charles cooper argued that there was already a democratic process going on in the states to determine whether gay people should marry, and the court should stay out of it. he also said allowing same-sex couples to marriage would sever marriage and encourage so-called responsible procreation. >> michael: that issue of whether marriage is just about

having kids is part of the discussion. here is justice kagan. >> michael: would that be constitutional? a very good question, but justice scalia, one of the most conservative justices on the court responded by saying basically, in that case maybe there should be a questionnaire at the clerk's office that asks are you fertile. then he joked about strom thurmond who fathered a child in his 70s. yes, that really happened. then the justices acknowledged that gay people already have children so the question should be being raised by gay parents

has an impact. justice scalia said it was hard to determine that, because it was newer than cell phones or the internet. justice anthony kennedy, usually the court's quote swing vote also said the science is inconclusive but added that the children of gay couples deserve a voice. >> michael: now that is a compelling argument. in the end the court might actually make it's a decision not on the merits of the case but on a procedural issue called standing. whether the opponents who

brought this case are even the right people to defend the ban. the court did the exact same thing when it first took up the issue of interracial marriage. a few years later the court issued a final ruling make it legal across the nation. back here in california a new poll shows that 67% of voters think same-sex couples should be able to marry. that's a full two-thirds and just 30% now support the original prop 8 ban. it's really incredible. the court is expected to issue its final decision by june. joining me now is mike sacks from washington. thank so much for joining us in "the war room." >> you're welcome. >> michael: does that shift in public opinion play into the court's ruling at all? >> i don't know.

it played into a couple of justice's reasoning. justice sotomayor said why not let this percolate a little bit. remember the flowcharts that every publication pointed out of how many different ways this case could turn out. kennedy by the end of the argument said screw all of that, i just want to dismiss this case. by that time in the argument he said i don't want to do that, and he said i want to get this case out we never should have granted it. and then justice sotomayor said maybe we should leave it to percolate a little bit. >> michael: talk to the viewers about how -- if kennedy says why are we even taking this case? why are they taking this case? >> it takes four justices to

vote to take a case. when prop 8 was granted back in december, a lot of people were wondering why. actually people expected them to grant tomorrow's doma case. so everyone just assumed that in the following months that the justices really were intending on tackling same-sex marriage in california with prop 8. we heard a little bit of behind the curtain talk with kennedy today, but i imagine there is a smattering of conservatives and liberals on the court who wanted to shut down prop 8 and perhaps even extend same-sex marriage to the entire country. >> michael: in a way his being in the middle there, and being the fifth vote is exactly why he would be the person to say that. tell me, mike, a little bit about the issue of standing. what does standing mean? >> the ability to get into court.

now the question with the prop 8 pro opponentpoen -- proponents when there was no one to prop up prop 8 if you will the prop 8 proponents said we'll take it and run with it. the question got to the california supreme court which said the prop 8 proponents were adequate representatives of the state's interests, and the ninth circuit took that and let them appeal, and they stuck down prop 8, and the court itself grappled 4-4 pretty much with whether or not to take this case and listen to the california supreme court based on its standing. >> michael: if anything is consistent it is how unpredictable they are.

do you think the court is going to rule in that way? obviously it's just guessing. >> it is just guessing. this is the wild issue here. chief justice roberts seemed to be a bit ambivalent on whether or not to join the liberal justices, but justice kennedy and justice alleyia and sal -- scalia and i'm guessing silent justice thomas -- we just don't know. ultimately justice kennedy is really going to hold all of the cards here. and i don't think if the four liberals will follow him. but the only other option was a 50-state solution. and he seemed really freaked out about that. >> michael: so if they do rule on standing where does that leave any ban on gay marriage in

california then? >> if they junk the case on standing that gets rid of the 9th circuit opinion, and then goes back down to the district ruling, where the judge said it violated equal protection, due process, and extends same-sex marriage to the entire country. he is only one district judge in one district of california so this is something that a lot of legal experts are confused about, and this will probably be the talk of the town if the justices rule on standing. >> michael: that's really fascinating, and i think the supreme court always confuses a lot of people. tell me the impact this state case may have on other state laws then. >> okay. so i think ultimately this is the democratic process, and that prop 8 was even granted, that the justices heard prop 8, and saw those rallies today, means

the process is chugging along. even the conservative justices at the court today, all seemed to know where the country was heading. that might leave alabama, mississippi, georgia, those states still keeping bans on same-sex marriage. and then we can get into the situation like you mentioned, loving v virginia but that might be a long time from now, but the way we're moving that could be just some years from now. >> michael: yeah that's the interracial marriage case we talked about before. next on the docket the constitutionality of doma. give us a quick preview of that case. >> this is about whether the federal government can define marriage between a man and a women, therefore depriving anyone legally married state

taxes, or military benefits et cetera. there are over a thousand federal laws currently keeping same-sex couples in new york for instance, from getting -- from getting recognition from the federal government. so the supreme court, i'm guessing by probably 6-3 vote with chief justice roberts and justice kennedy with the liberals will say that doma is patently unconstitutional, and that will allow the people in the states and the district of clum bee -- they will get to receive their benefits. >> michael: all right. tell me that you don't know more now that mike sacks has stopped by "the war room." coming up on "the war room," the politics of gay marriage can be complex and tangled as its legalities.

karl frisch will tell us how both parties are trying to get in front of an issue moving faster than they are. plus rand paul is thinking about giving the filibuster another go on the gun bill. the question is will bebring robo jerk ted cruz to pile on. and sugar is really really bad for us. dammit. "the war room" on a tuesday, and we will be right back. ♪ billy zane stars in barabbas. coming in march to reelz. to find reelz in your area, go to reelz.com

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alright, in 15 minutes we're going to do the young turks. i think the number one thing that viewers like about the young turks is that we're honest. they know that i'm not bs'ing them with some hidden agenda, actually supporting one party or the other. when the democrats are wrong, they know that i'm going to be the first one to call them out. they can question whether i'm right, but i think that the audience gets that this guy, to the best of his ability, is trying to look out for us. ♪ >> michael: as the debate over same-sex marriage heats up inside the courtroom, those

outside of it are seeing red. supporters of same-sex marriage are supporting the color both on their bodies and their soernl media accounts. thousands of users on twitter and facebook changed their profile status to this red version of the human rights campaign logo. they encouraged users to change their avatars this week to show their support. some lawmakers were quick to join the trend including martin o'malley who tweeted this photo, saying quote, wearing red today for marriage equality in maryland we believe in the dignity of every individual. one of my favorite tweets came from the democratic senator, chris murphy who tweeted . . . love that. joining me now to break down the politics of same-sex marriage is karl frisch, who comes to us from washington, d.c. where he

is part of the bullfight strategies. karl welcome back. >> thanks, michael. how are you? >> i'm great. this is important stuff we're watching. >> it is sure is. >> michael: jay carney said this today when asked to predict how the supreme court would rule. take a listen. >> i -- i think we have seen in recent history there's ample reason to be cautious about predicting outcomes in supreme court cases based on any particular piece of the puzzle in this case oral arguments. >> michael: well this that's not decisive, if that's not an answer, i don't know what is. wow. so the overwhelming amount of support for same-sex message is generating the optimism is the amount of support overblown? are democrats getting their hopes up too much karl? >> we might be getting our hopes

up too much, but i don't think the amount of support is overblown. you will show marriage equality gaining more and more strength with ever poll. this a past yeek we saw polls of nearly two-thirds of americans supporting marriage equality almost 60%. when this supreme court strikes down the defense of marriage act, and when this supreme court makes it so marriage equality at least comes back to california you'll see those numbers change even more. when people recognize there's a reality that marriage equal city coming, they feel much more sure of themselves in seeing that they too stand with marriage equality, just like they did after president obama endorsed marriage equality. >> michael: i'm glad you brought that up. changing the conversation always seems to be one of the most important parts of what -- of

course the supreme court can change the law but what a president does so i'm glad you brought that up. i want to ask you as a00. thing, what do you think will happen on a state level if the supreme court issues an am beneficiary wows or split decision? >> i don't know how ambiguous it will be. i would anticipate we'll end up with some sort of split decision. what that does is opening up a variety of lawsuits for people wanting their marriages recognized in multiple states if you get married in new york and you want your marriage recognized in new jersey or rhode island, for example, which are close to getting marriage equality, why wouldn't that marriage be recognized here too. regardless of what the supreme court does on the broader question of whether we get a 50-state solution here is that the march for equality is moving forward with or without them.

obviously it would be very nice if they gave us a nice package with a bow on top, but even if they don't do that, it's only matter of time before they have to. >> michael: yeah, and that's what -- you know people who watch the court certainly closer than i always say that these things are gradual and i never understand it. the country came to this decision it seems -- >> it's ridiculous the idea that a supreme court would look at an issue and say to itself it might not be time yet, the country might not yet be ready for it. i mean there's been some discussion that that's -- look at roe v. wade, the country wasn't quite ready for such a sweeping ruling. it doesn't matter if the country is ready, justice scalia asked when did the notion of marriage

equality become unconstitutional. it became unconstitutional when we ratified the 14th amendment. so whether or not the country is ready for it, it shouldn't matter. congress is for the politics the court is for the constitution. >> michael: right. let's talk about some of these people who are now coming out in favor of it. bill clinton wrote a peace in the "washington post" denouncing his decision to sign the defense of marriage act in 1996. how has the political climate changed since 1996, what pressures was he facing? was he that afraid of bob dole. >> it wasn't just bob dole. culturally we were a different country. it was pre-ellen degeneres

coming out no broke back mountain, no "glee" on high school. i graduated from high school as a heterosexual closeted gay man. this country has moved a long way. if you look at the average age of people coming out in the mid-to late '90s it was in the mid-to late 20s, and now it's in the teens. and as more and more people come out, everything else moves along with it. so it's no surprise that the country, as far as the government goes is far behind the culture, but the culture has a lot to do with it. if you listen to president clinton he'll tell you the reason he signed the act was to keep congress from signing another constitutional amendment. so that's his rationale, i think what is heartening is that in

the last month alone, you have seen a swath of senator come out from conservative states like west virginia, missouri, rob portman from ohio come out in favor of marriage equality. president clinton, president carter. laura bush. all of these huge national figures have recognized the need for marriage equality. this train is moving and anybody who stands in the way of marriage equality risks being seen as completely out of touch for generations to come. if the republican party doesn't come along the way that rob portman has they risk offending the lbgt community. >> michael: karl frisch thank you so much for being here and

sharing your thoughts on these at no time important issues. up next, senator on both sides want the whole gun debate to go away, unfortunately this is what they were sworn to do, so somehow they have to wap away the tears, suck it up and get through it. that story is next only right here on "the war room." >>current will let me say anything. save them. woolite everyday cleans your jeans and won't torture your tanks. woolite washed clothes

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♪ >> michael: gun safety legislation is putting some senators in bind while others are fighting back. today the terrible trio of republican senator sent a letter to harry reid saying that they plan to filibuster the gun

legislation working its way through the senate. this issue could not be more urgent. the 102 days since the massacre inside sandy hook elementary school, at least 3,027 americans have been killed by gun violence. there is pressure from the left though. television ads from michael bloomberg's mayors against illegal guns groups will be on the air in 16 states. they are focusing on states where they think they can apply enough public outcry to get senator on its side. here is its message. >> my dad taught me to hunt. and i'll teach my kids. background checks have nothing to do with taking guns away from anyone. closing loopholes will stop criminals and the dangerously mentally ill from buying guns. that protects my rights and my family. >> michael: here is a map of the

21 states where democrats will have to defending senate states in 2013. bloomberg is putting them up for election right here. on notice that they are on the hot seat. joining me now for the look of politics of self preservation is of course democratic strategist donnie fowler. thank for coming back in "the war room." >> from gays to guns. we have to get to god in another show. >> michael: that's right. we see north carolina, let's talk about a couple of these characters. we have mark pryor here senator now two terms in office in arkansas what are the risk for somebody like mark pryor? he comes from an arkansas political family going back forever. >> yeah. he has been elected twice. he is a moderate democrat in a

usually red conservative state, so what he has going for him is understanding of his own voters and his own constituents. last week i heard senator say you can show me the national polls but that's not what is happening many any own state. >> michael: tell me about the mind -- tell me about the mind of a senator. where are the senator that come out and say i may not win. >> look, let's not assume that every democrat should be for gun control. many democrats believe the second amendment to bare rights is as sacred and important as the right to free speech. >> michael: that's a great point, donnie.

but you hear this, and you talk about the second amendment, the vice president and everybody saying this is not going to touch the second amendment. >> but that's a question of interpretation, right? if i shareholder you that i want you to show me your speech every time you go to the public park before you two to a speech you might say that does affect your first amendment rights. so i think there's a lot of room for disagreement here. >> michael: all right. i'll disagree with you on that. >> that's right. >> michael: let's go to mary. >> she is a veteran, she knows about her voters in louisiana, she knows how to get reelected and she may be a politician about gun control or she may be completely sincere. >> michael: is she more of a democrat thanking even she gets credit for sometimes? >> yes.

somebody did a study and said the most conservative democratic senator is still more liberal than the most liberal republican senator. >> michael: all right. mark udall, colorado. that's where it has all gone down. >> this is really interesting. his cousin is a u.s. senator from new mexico of course. but mark udall is on his first term for reelection. colorado just passed probably the strongest anti-gun control legislation in the country. what is going to be really interesting is if there's a backlash, if there's a negative reaction to the colorado law is mark udall going to pay the price? >> michael: or he could be in

the best position ever. >> yeah. >> michael: max baucus. here is an interesting case. six-term senator, possibly challenged by a very popular former governor tell me about his position. >> again like the southern senator, he knows his voters. here is the difference when you are running in a primary against a very popular former governor, you are facing liberal voters. so max baucus who has consistently won in a modest republican, may do fine in the general election although i think brian schweitzer is as much in favor of gun rights as baucus. so that may not be an issue they fight over. >> michael: that's true. but john tester who is also in

the same vote, whether he is going to vote to support background checks -- >> and the new governor -- >> michael: that's right. and then there's joe manchin of west virginia. tell me about joe manchin. >> so contradict myself about the most -- >> michael: you are not allowed to do that. >> he might be the exception to that rule. but joe manchin is a first termer. he knows his voters just like the other senator. he will probably be okay because he basically holds the right position to most of the social issues as west virginia generally. >> michael: yeah and he is pretty popular in west virginia. >> very popular.

>> michael: and itlike looks like your home state, up on mark sanford, tied be curtis bossic was endorsed by rick santorum today, what is going to happen today? >> rick santorum is going to endorse bossic -- that means none. we don't know what is going to happen in that circus. >> michael: donnie fowler thank you so much for being here. up next, sorry to tell you this mary poppins, but far from making everything better that spoonful of sugar is going to give your young charges type ii diabetes.

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>> oh bloomberg is not around. people are safe. it's cool. it is just pop with low-cal ice cubes in it. i hope that's okay. >> michael: that of course was sarah palin at cpac last week mocking new york city's mayor michael bloomberg attempting to ban large sugary drinks. grasping scientific reality, not so much her strong suit. downing a supersized soda is definitely not okay for your health. there is a direct tie between sugar and type ii diabetes.

as sugar in diets rose so do these prevalence of type ii diabetes. joining me in "the war room" is one of the doctors behind that study, host of the new "naughty but nice" show rob shuter. he is the author of "fat chance: beating the odds against sugar, processed food, obesity, and disease." he is here to talk about his findings and the politics behind sugar. welcome to the "war room," dr. lustig. >> thank you for having me. >> michael: tell me why is sugar so addictive. >> it's two things. number one it is toxic to your body. and number two it is addictive to your brain, and it's those two things together that make it such a problem. the same as tobacco, the same as alcohol, the same as cocaine, the same as heroine. when it's toxic and abused then you have a societal problem.

and that's when government is supposed to step in. why? it basically floods your liver with fat. it causes your liver not to work right. that races insulin levels all over the body. that causes the obesity hypertension and all of the other diseases that we know about including type ii diabetes. at the level of the brain it is acting the same way alcohol is and that is promoting the reward system. so a little, that's fine. but you want more, and you eat more. the food industry learned when they add it, you buy more. >> and the food industry is now saying they want to be part of the problem. they understand the detriments. take a look at this ad from coca-cola. >> but beating obesity will take

action by all of us based on one common sense fact. all calories count no matter where they come from and if you eat and drink more calories than you burn off, you'll gain weight. >> michael: you see that it makes me think they are getting it wrong but i'll let you answer. >> they say three things in that spot. number one a call i have a calory. number two if you are fat it's your fault. and number three because we make diet drinks we're part of the solution. a calory is not a calory. and sugar calories are very toxic. >> michael: if i have a piece of veal and it's 100 calories, and i have a soda that's different? >> the soda is seven times worse for you in terms of general health and 11 times more

problematic for diabetes. than the steak calories. the other problem with the spot is that they say they are part of the solution. by definition if non-caloric drinks are the solution they are the ones that make the caloric drinks so they are the problem. >> michael: right. so why do they disagree? obviously the dollars and cents of it make it reason and i understand that. but how do they disagree with the science? >> in fact they never say they disagree with the science. they say oh it's overbrood, done in animals not mechanistic jet cetera. the bottom line is that's where this study is so important. because while it doesn't cause

causation, it is causal medical inference. it's the same level of proof we had back in the 1960s implicating tobacco as the cause of lung cancer. >> michael: so you have moved from science to law. >> yes, i have. in a master's program. not as a jd. >> michael: and tell us the im impyitus of doing that. >> we're in a war. and the food industry is winning. ultimately the legislative and executive branches of government cannot solve this, and there are reasons why. number 1, 6% of our exports are food. number two, most of congress is bought off by the food industry. bottom line the tobacco play book says this has to go to the

courts. this is a statement that says all significant public health advancement requires the use of law. we want to bring the same issues to bare -- >> michael: so you are really devoting your life to this. you are going at it so you can be as prepared as you can on the legislative side. you are right, there are few people who are out there speaking against this. tell me what you think about this soda ban. >> i was for the soda ban, even though i don't think it is going to solve obesity, and sugar is not the only cause of obesity. it makes obesity to diabetes that's a very different issue. potato chips and french fries are more obese causing than sugar is. but it's a baby step in the

right direction in terms of governmental and societal intervening. >> michael: and i think it creates a converseation. here we are talking about it. and it's months and months and months later, they are at cpac talking about it. >> exactly. they brought a court measure into the issue as to the analogies between the two, but the fact is there are clear dichotomies in terms of what is going on versus what that ruling was. and convenient yulely this will be appeals and eventually overturned. >> michael: can this war be won? >> it has to be won. a report was just released that the obamacare is now going to

cost 32% more than what they originally said it was. medicare will be broke by the year 2024. i want my medicare. it has to be solved. >> michael: doctor thank you. it's tuesday afternoon on the west coast here, which means the stress of the week is already starting to get to brett ehrlich. watch out. he's next. >> coming up john kerry, mock drain, and what is desert? an expose after this. you don't have to compromise. that's what we call healthing. introducing lysol touch of foam hand soap. its rich, thick foam offers 10x more protection against germs on hands while added moisturizers leave your skin feeling so soft, everyone can feel it. new lysol touch of foam. tough on germs soft on skin.

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♪ >> now let's head down to los angeles and headquarters of "the young turks," which is under government drone surveillance as we speak. cenk i understanding you spoke with president jimmy carter.

when was he president in the 60s? [ laughter ] >> he was president in the 70s, and i had a conversation about iran and israel, and that's coming up on your show. we have michael hastings on a breaking report on a cia officer that was addicted to crack -- and you don't want to know about crack. [ laughter ] >> what is crack? >> nothing. it's something on the sidewalk. and then we got 3-d printer technology where you can print guns, medicine. i think it's insane. and the thunder doma too in the supreme court. >> michael: all right. cenk thanks so much. as we sort through our basketball picks we can't help but wonder how politics plays into our obsession with sports.

there is a proposed ban on all current and future trademarks that use the words "redskins" that refer to football teams. the act wouldn't man the use of the word "redskins" it would strip it's trademark protection and in the world of the nfl a hit to the wallet may be more effective than the hit to the heart. a las vegas democrat has offered a way to make it legit. he introduced a bill to legalize betting on federal elections. he said it was quote, simply to make money for the state. but tic if we allow gambling on elections, i worry about the bad

influence all of the money and shady characters will have on the comparatively clean process of gambling. plus as sheldon adleson knows casinos already do better than our elections. and i learned you give brett a whistle and you will regret it. just try to relax, brett is talking now. >> life is a game and sometimes you wish you were the coach of that game so you could take the idiots who were playing bad, sit them down on the bench next to you and say listen moron head you are done! paranoids members of the tennessee state assembly you are done thinking that this is an assault on your freedom. when the tennessee state house was renovated the contractor

installed this a floor based mop sink so the janitors would have an easier time refilling mop baskets. and some legislators thought it was an evil sink to allow muslims to wash their feet. it's not. photographers you are done making john kerry look like an idiot. he was in afghanistan and decided to head a soccer ball. unfortunately there were photographers there who caught the moment which looked like this. have a heart, hasn't this man suffered enough. remember this photo when all he was doing was getting dressed up to launch a nuclear attack on britain in an early '70s james bond film. okay. maybe this one was his fault. either way photographers you

are done. and finally, lil' wayne you have are done drinking siz-rp. that doesn't mean you should keep drinking we need you lil' wayne. so drop the beat. don't let your heart beat drop. lil' wayne you are done. ♪ >> michael: someone is always in our war room check us out on line at current.com/thewarroom that's also where you are link up to our twitter and facebook page and check out our exclusive war room extras. as my son owen just told you, "the young turks" are next. have a good night. ♪